UNITED STATES OF AMERICA, Plаintiff-Appellee, v. JAVIER PEREZ, AKA Ranger, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VLADIMIR ALEXANDER IRAHETA, AKA Jokes, AKA Slick, AKA the Twin, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LEONIDAS IRAHETA, AKA Druggy, AKA Drugs, AKA Shysty, AKA the Twin, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDUARDO HERNANDEZ, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDUARDO HERNANDEZ, AKA Ed Garcia, AKA Eduardo Garcia, AKA Eduardo Hernadez, AKA Eduardo Perez Hernandez, AKA Edward Hernandez, AKA Lil Oso, AKA Jorge Mateo Martinez, AKA Oso, AKA Hernandez Oso, AKA Edward Perez, AKA Terco, Defendant-Appellant.
Nos. 13-50014, 15-50241, 15-50243, 18-50187, 15-50246, 18-50181
United States Court of Appeals for the Ninth Circuit
June 11, 2020
D.C. Nos. 2:07-cr-01172-DDP-32, 2:07-cr-01172-DDP-25, 2:07-cr-01172-DDP-26, 2:07-cr-01172-DDP-23
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JAVIER PEREZ, AKA Ranger, Defendant-Appellant.
No. 13-50014
D.C. No. 2:07-cr-01172-DDP-32
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
VLADIMIR ALEXANDER IRAHETA, AKA Jokes, AKA Slick, AKA the Twin, Defendant-Appellant.
No. 15-50241
D.C. No. 2:07-cr-01172-DDP-25
UNITED STATES V. PEREZ
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
LEONIDAS IRAHETA, AKA Druggy, AKA Drugs, AKA Shysty, AKA the Twin, Defendant-Appellant.
Nos. 15-50243, 18-50187
D.C. No. 2:07-cr-01172-DDP-26
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
EDUARDO HERNANDEZ, Defendant-Appellant.
No. 15-50246
D.C. No. 2:07-cr-01172-DDP-23
UNITED STATES V. PEREZ
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
EDUARDO HERNANDEZ, AKA Ed Garcia, AKA Eduardo Garcia, AKA Eduardo Hernadez, AKA Eduardo Perez Hernandez, AKA Edward Hernandez, AKA Lil Oso, AKA Jorge Mateo Martinez, AKA Oso, AKA Hernandez Oso, AKA Edward Perez, AKA Terco, Defendant-Appellant.
No. 18-50181
D.C. No. 2:07-cr-01172-DDP-23
OPINION
Appeal from the United States District Court for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted February 10, 2020
Pasadena, California
Filed June 11, 2020
Before: Marsha S. Berzon, Richard C. Tallman, and Ryan D. Nelson, Circuit Judges.
Opinion by Judge Tallman
UNITED STATES V. PEREZ
SUMMARY*
Criminal Law
In appeals arising from the prosecution of four members of the Columbia Lil Cycos clique of the 18th Street gang, the panel affirmed the convictions of Eduardo Hernandez, Leonidas Iraheta, and Vladimir Iraheta; affirmed in part and reversed in part the convictions of Javier Perez; vacated Perez‘s sentence; and remanded for resentencing.
The panel held that a post-verdict filing made in camera by a third party did not contain Brady material, and the district court did not abuse its discretion in declining to allow Leonidas‘s and Hernandez‘s attorneys to view it.
Leonidas and Hernandez claimed that the government surreptitiously elicited expert testimony from law-enforcement officers in violation of
Perez alleged that the district court improperly instructed the jury on the extraterritorial application of the Violent Crimes in Aid of Racketeering (VICAR) statute. The panel explained that VICAR may reach a crime committed abroad with sufficient nexus to the conduct of an enterprise‘s affairs, but if the predicate crimes cannot reach foreign conduct,
neither may VICAR. Because the predicate crimes with which Perez was charged—California‘s attempted murder statute and its definitional components—do not proscribe extraterritorial acts, the panel held that the district court erred in instructing the jury that it is not necessary for the government to prove that any part of the charged crime took place within the United States. The panel wrote that this error has a constitutional due process dimension: it relieved the United States of the burden of proving the required connection between American territorial jurisdiction and the crimes in the challenged counts for which Perez stood trial in the Central District of California. The panel therefore evaluated whether the instructional error was harmless beyond a reasonable doubt. The panel concluded that the instructional error was harmless as to Count Sixteen (VICAR conspiracy to murder) because (1) there was evidence of the conspiracy‘s origin in California; (2) the jury‘s special finding as to the date that the conspiracy began was strong evidence it believed that the plan was hatched in California; and, most importantly (3) as to that count, the jury was correctly instructed that, in order to convict, it must find that “an overt act was committed in this state by one or more of the persons” involved. The panel held that the instructional error was not harmless beyond a reasonable doubt as to Count Eighteen (VICAR attempted murder), where no contrary instruction cured the initial error.
The panel rejected sufficiency-of-the-evidence challenges to Hernandez‘s and the Iraheta brothers’ narcotics-conspiracy convictions and Perez‘s conspiracy convictions.
At sentencing, the panel held that the district court erred in its application of a firearm enhancement to Hernandez, but that this error was harmless. The panel rejected Hernandez
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and Leonidas‘s objections to the district court‘s drug-weight calculation, application of a threat enhancement, explication of
COUNSEL
Katherine Kimball Windsor (argued), Law office of Katherine Kimball Windsor, Pasadena, California, for Defendant-Appellant Eduardo Hernandez.
Lawrence Jay Litman (argued), Riverside, California, for Defendant-Appellant Javier Perez.
Phillip A. Treviño, Los Angeles, California, for Defendant-Appellant Vladimir Alexander Iraheta.
Timothy A. Scott and Nicolas O. Jimenez, Scott Trial Lawyers APC, San Diego, California; for Defendant-Appellant Leonidas Iraheta.
Julia L. Reese (argued) and Kevin M. Lally, Assistant United States Attorneys; Brandon D. Fox, Chief, Criminal Division; Nicola T. Hanna, United States Attorney; United States Attorney‘s Office, Los Angeles, Califоrnia; for Plaintiff-Appellee.
UNITED STATES V. PEREZ
TALLMAN, Circuit Judge:
This is a criminal appeal from judgments of conviction and sentence rendered in the Central District of California arising from the prosecution of four members of a violent street gang. We affirm the convictions and sentences of Appellants Eduardo Hernandez, Leonidas Iraheta, and Vladimir Iraheta. We affirm in part and reverse in part the convictions of Appellant Javier Perez, vacate his sentence, and remand for further proceedings.
I
The Columbia Lil Cycos (CLCS) clique of the 18th Street gang controlled drug distribution, committed extortion, and engaged in other illegal activities in the Westlake neighborhood of Los Angeles from at least the mid-1990s. CLCS and allied gangs operate under the umbrella of the Mexican Mafia (the “Eme“), a prison-based gang whose members, once behind bars, continue to oversee the street gangs with which they were affiliated before their incarceration.
When a street vendor defied CLCS‘s extortion regime in September of 2007, the gang sent a gunman to murder him for his
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murder, assault, maiming, kidnapping, and various conspiracies and attempts to do the same. By the time of trial in early 2012, only these four Appellants remained to be tried. Their confederates all pleaded guilty, and several—including former CLCS leaders Sergio Pantojа, James Villalobos, and Jose Delaguila—testified for the government at Appellants’ trial.
The trial began on February 29, 2012. Appellants were tried together on the theory that they were all members of an illegal enterprise which carried out its nefarious activities through a pattern of racketeering activity. The criminal endeavors of Hernandez, Leonidas Iraheta (“Leonidas“), and his twin brother Vladimir Iraheta (“Vladimir“), on the one hand, and Perez on the other, were different: Hernandez and the Iraheta twins were convicted for their roles in running CLCS‘s narcotics and extortion activities, while Perez‘s convictions arose out of his participation in a conspiracy to kidnap and murder the gunman responsible for baby Garcia‘s death, Giovanni Macedo, to protect CLCS from reprisals by the Eme for the infant‘s murder.
The CLCS Enterprise
By the mid-1990s, CLCS had come to dominate the Westlake/MacArthur Park neighborhood of Los Angeles, between Beverley Avenue and Wilshire Boulevard (north to south) and Alvarado Street and Burlington Avenue (west to east). A constituent clique of the broader 18th Street gang, CLCS fought the Mara Salvatrucha and, especially, Rockwood Street gangs for primacy in Westlake. CLCS ran a sophisticated drug-trafficking and extortion racket in its territory. Drug wholesalers (“mayoristas“) and street-level dealers (“traqueteros“) paid CLCS “rent” for the right to sell drugs—mostly crack cocaine—on the street corners near MacArthur Park. The dealers were strictly controlled: a
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traquetero who broke CLCS rules by selling outside his allotted shift or skimming money off his collections was liable to be savagely beaten. Other illegal businesses—document forgers, gamblers—paid rent to CLCS, too, as did many legitimate businesses in the neighborhood, under threat of violence.
CLCS ruthlessly defended its territory from еncroachment. Armed bands of roving, gang-affiliated youths (“little homies“) were expected to “put in work” by marking CLCS territory with copious graffiti and undertaking expeditions into rival neighborhoods to show strength and disrespect. Violence abounded: if a rival gang passed through CLCS streets or marked them with graffiti, gang leaders expected associates to “[j]ump them,” or, as one CLCS leader put it, to give them “[a]n ass beating that maybe he can‘t get up off the floor and ... sometimes if you have a gun or you have a knife ... you either just stab them or you shoot them.”
Witnesses for the government put Hernandez and the Iraheta twins at the center of both CLCS “gangbanging“—meaning tagging, enforcing, and countering rivals—and drug distribution. Hernandez led the collection of rents at a lucrative drug-dealing hub, Westlake, from Third to Sixth Streets, in addition to overseeing gangbanging. One witness called him “the ultimate decisionmaker” on “what to do if any
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“missions” into rival territory to “go do something to a rival gang or to someone else; rob, tag on the walls, anything.”1
CLCS was led by Francisco Martinez, who—despite being incarcerated at the “Supermax” federal prison complex in Florence, Colorado—maintained control over CLCS and other Los Angeles 18th Street cliques from his cell. Originally a member of CLCS himself, Martinez was convicted of “[r]acketeering and a bunch of murders” in the 1990s and thereupon joined the Eme, which continues to wield control over most of the Hispanic gangs of Southern California. Martinez maintained his grip over CLCS with the help of disgraced attorney Isaac Guillen, who testified for the government in Appellants’ trial. Guillen used the shield of the attorney-client privilege to circumvent Florence‘s security procedures, secreting and passing information and orders to and from Martinez and CLCS‘s street leaders.
CLCS leaders, including Hernandez and both Irahetas, would divvy up all the rent collected, section off Martinez‘s share—usually $5,000 to $17,000 a week—and deliver it to Guillen. Guillen would launder the money by investing it in a variety of businesses, funneling it to Martinez‘s relatives in Mexico, or putting it on Martinez‘s inmate “books” at Florence. This scheme enriched Martinez and enabled him to continue to exercise control over this lucrative and violent Los Angeles neighborhood.
UNITED STATES V. PEREZ
The Garcia Murder and its Aftermath
Francisco Clemente sold black-market goods at a street stand in CLCS territory. He got on the wrong side of CLCS leaders by acting disrespectfully and refusing to pay rent. In the summer of 2007, CLCS leader Pantoja tired of Clemente and chased him out of the neighborhood, telling rent-collector Juan Pablo Murillo to “take care of it” if Clemente returned. When Clemente did return, Murillo enlisted Macedo—then 18 years old—to show Clemente what became of those who defied CLCS. Late at night on September 15, 2007, Macedo and Murillo made their way to Clemente‘s stand on Sixth Street, and Macedo fired several shots at him. Clemente was wounded but survived. 21-day-old Garcia was not so lucky—he was struck and killed by a stray bullet.
When he found out what had happened, Pantoja testified that he told Murillo the latter had “fucked up” by killing baby Garcia, violating the Eme‘s strict code against murdering infants and potentially triggering a gang-wide “green light” whereby all CLCS members would become targets for murder by other Eme-affiliated gangs. Pantoja told Murillo that Macedo “had to be dealt with.” Murillo, a member of an allied 18th Street clique—South Central—enlisted the help of fellow South Cеntral member Javier Perez. At around 10 p.m. on September 19, Murillo and Perez went to the home of another South Central member, Flor Aquino, and demanded the use of her Chevrolet Tahoe, purportedly to take Macedo to San Diego to hide out. Aquino reluctantly agreed, but decided she would do the driving. Murillo and another gang member went to Macedo‘s apartment, ordered him into the car, and drove away before informing him they were taking him to Mexico. They met up with Aquino and Perez at Aquino‘s home, and
UNITED STATES V. PEREZ
Across the border in Tijuana the next day, Aquino stayed with Macedo in the hotel while Murillo and Perez met up with Pantoja, who had gone to Tijuana, he said, to ensure Macedo was properly taken care of. Murillo assured Pantoja he and Perez would “handle it,” and showed Pantoja a gun. Perez and Murillo returned to the hotel and took Macedo out drinking, then back to the hotel. Later that night, Perez, Murillo, Macedo, and Aquino drove toward Mexicali through the Sierra Juarez mountains on a cliffside highway, with Macedo in the front passenger seat. Perez and Murillo—seated in the back seat while Aquino drove—grabbed a rope, threw it around Macedo‘s neck, and began to strangle him. Murillo told Macedo he had messed up; Perez was less circumspect: he yelled, “Die motherfucker, die!”
After strangling Macedo until he was bloodied, Perez and Murillo checked to see if Macedo was still alive. Believing him dead, Murillo and Perez dragged Macedo out of the car and threw him over the cliffside. But Macedo was alive: he woke up sliding down the cliff, grabbed a tree root to check his fall, climbed back up to the road, managed to hail a ride, and returned to the United Statеs. He later testified against Perez at trial.
After thirty-one trial days, the case was submitted to the jury on May 3, 2012, and after several days of deliberation, the jury returned a mixed verdict. Appellants were all convicted of Count One (RICO conspiracy,
UNITED STATES V. PEREZ
Sentencing
Prior to sentencing, the United States Probation Office completed Presentence Reports (PSRs) for all Appellants. All parties filed objections, and an amended PSR was also filed for Perez, updating the recommended Sentencing Guidelines calculations in response to some of the government‘s objections. The district court conducted separate sentencing hearings for each Appellant. All four Appellants were given life sentences; Vladimir is the only Appellant who does not challenge the court‘s sentencing determination.
The court‘s calculation of offense levels for Hernandez and Leonidas relied upon the quantity of drugs it determined were reasonably foreseeable under
UNITED STATES V. PEREZ
threats, obstruction of justice, and managerial role in the enterprise. Hernandez was calculated to have a final offense level of 45, which
Like his co-Appellants, Perez was sentenced to life. Given our disposition as to Perez, we do not reach his sentencing challenges.
II
We first evaluate each of Appellants’ merits claims, beginning with Hernandez and Leonidas‘s joint attempt to access a sealed filing post-verdict, proceeding to examine the same Appellants’ challenge to certain police officer testimony and Perez‘s extraterritoriality claim, and finishing with consideration of all four Appellants’ sufficiency-of-the-evidence arguments.
A
Leonidas and Hernandez claim the district court erred in blocking their counsel from viewing a post-verdict filing made in camera by a third party. They speculate that the filing contains “information that could have been used to impeach ... Guillen.” We review for abuse of discretion a district court‘s denial of a motion to unseal, see United States v. Sleugh, 896 F.3d 1007, 1012 (9th Cir. 2018),2 reversing
UNITED STATES V. PEREZ
only if the denial was “illogical, implausible, or without support in inferences that may be drawn from the facts in the record,” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
We have examined the third-party filing at issue and determined that the district court acted well within its sound discretion in declining to allow Leonidas‘s and Hernandez‘s attorneys to view it. Because of the salacious nature of the content, we do not detail the facts here. But we have carefully considered the material and the arguments of defense counsel, and hold that the suppressed evidence does not contain Brady material.
B
Leonidas and Hernandez next assign as error the district court‘s admission of large portions of testimony from four law-enforcement witnesses. Appellants claim the government surreptitiously elicited expert testimony from the officers—who were testifying as lay witnesses, not experts—in violation of
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decline to reverse based on an erroneous evidentiary ruling unless the district court‘s refusal to intervene sua sponte is “(1) error; (2) that is plain; (3) that affects substantial rights; and (4) ... seriously affects the fairness, integrity, or public reputation of judicial proceedings,” United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011) (citing Johnson v. United States, 520 U.S. 461, 466-67 (1997)). Any error in admitting a lay witness‘s opinion is harmless so long as “in light of the evidence as a whole, there was a ‘fair assurance that the jury was not substantially swayed by the error.‘” Gadson, 763 F.3d at 1208 (quoting United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007)).
1
The government called officers Joe Guadian, Paul Keenan, Manuel Rodriguez, and Daniel Jenks as witnesses during its case-in-chief. At the times relevant to their testimony, Guadian was a federal Bureau of Prisons (BOP) investigator, Keenan and Rodriguez were FBI Special Agents, and Jenks was an LAPD detective; Keenan was the lead case agent for the prosecution. The four officers opined on a variety of subjects. Appellants claim that some of this testimony, including their opinions on “code words, phone calls, graffiti, and tattoos,” was not permissible lay-opinion testimony.
UNITED STATES V. PEREZ
knowledge, but his employment does not endow him with any freestanding license to offer opinions. For instance, he may offer interpretations of “ambiguous conversations based upon his direct knowledge of the investigation,” Freeman, 498 F.3d at 904, or translate the drug jargon used by the targets of his investigation, see United States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009). But he may not “testify based on speculation, rely on hearsay or interpret unambiguous, clear statements.” United States v. Lloyd, 807 F.3d 1128, 1154 (9th Cir. 2015) (internal citation omitted) (prejudicial error to admit statement that “[e]verybody that [the witness had] ever worked with will always stretch the truth and make ... outright lies especially in certain techniques“). Guided by these principles from our case law, we evaluate each officer‘s testimony in turn.
Prison Investigator Joe Guadian
Guadian testified on the fourth and fifth days of trial, offering background on the Eme before analyzing the tattoos, associations, visitations, funds deposits, and communications of Eme members incarcerated at Florence, particularly Martinez. Guadian expressly based his testimony on information gleaned from his investigation of the Eme, his personal observations of Martinez, and his interaction with other Eme inmates. Leonidas and Hernandez posit that much of Guadian‘s testimony was “classic expert testimony,” but they did not so object at trial; their few objections did not serve to bring the competency issue to the trial court‘s attention.3 Review is thus for plain error. See Gadson, 763 F.3d at 1209.
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Leonidas and Hernandez assert that, because the sort of testimony offered by Guadian has been elicited from expert
While some of Guadian‘s opinions—such as his foray into the Eme‘s Mayan roots—arguably transgressed
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Mayan roots, counsel was unable to point to a single concrete connection between the offending opinions and Appellants’ convictions. See, e.g., Tr. of Oral Arg. at 5:36-5:59; 8:01-8:07; 15:22-16:24.
Counsel‘s inability to point to any actual prejudice from the district court‘s admission of Guadian‘s opinions reinforces what is obvious: allowing Guadian to testify as he did was not plain error.
Special Agent Paul Keenan
Special Agent Keenan, the FBI‘s lead case agent, testified on the trial‘s tenth and eleventh days. Appellants repeatedly objected to the relevance and foundation of Keenan‘s testimony; review is thus for abuse of discretion. See Freeman, 498 F.3d at 904.
Keenan testified about activities he observed and conducted during the investigation he led into CLCS, including surveillance of members’ meetings and drug distribution efforts; wiretaps of their phones; controlled purchases from gang members; and the results of searches of CLCS-affiliated properties. He matched gang members to monikers and vice versa, translated gang jargon, and identified indicia of drug trafficking, such as small plastic bags and digital scales. None of this testimony was impermissible under
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Special Agent Manuel Rodriguez
FBI Special Agent Rodriguez testified on the eleventh day of trial. We rеview the district court‘s admission of Rodriguez‘s testimony for abuse of discretion; Appellants’ foundation objection served to raise their concerns to the district court. See Freeman, 498 F.3d at 904.
Rodriguez‘s testimony mirrored that of Keenan: he identified callers on wiretaps
Rodriguez‘s interpretation of the wiretapped conversation between Pantoja and Guillen is just the kind of “ambiguous conversation[]” a lay witness with direct knowledge of an investigation—and, in this case, long hours spent listening to wiretaps and observing meetings—can clarify for the jury under Freeman. 498 F.3d at 904. The translation of Pantoja‘s coded language required no technical or specialized knowledge, see
Even if the district court abused its discretion in allowing Rodriguez‘s testimony, we are convinced the error was
harmless. Most of Rodriguez‘s testimony—like that of the other officers—simply provided the jury with informative but only tangentially relevant information about CLCS‘s overall activities and the means by which the police investigated them. We cannot imagine that the jury‘s hearing that “XVIII” meant “18,” for example, had any discernible effect on their verdict as to whether Appellants conspired to distribute narcotics. We have no difficulty in rejecting Appellants’ challenge to Rodriguez‘s testimony.
Detective Daniel Jenks
Finally, LAPD Detective Jenks testified on the twenty-fourth trial day. Jenks summarized the content of (1) wiretapped calls made by Murillo, including translations of gang slang, (2) jail phone calls made to Perez, and (3) searches, interviews, and arrests conducted after baby Garcia‘s murder. Leonidas and Hernandez challenge Jenks‘s opinions on the Murillo and Perez calls as improper under
In a few places, Jenks‘s testimony approached the line of permissibility under
But even if Leonidas and Hernandez might properly have objected to the admission of Jenks‘s opinions at trial, this is plain-error review—and they come nowhere close to alleging plain error. The line between lay and expert testimony in this context, we have acknowledged, “is a fine one.” Freeman, 498 F.3d at 904. Even granting, for sake of argument, that any error in admitting Jenks‘s opinions should have been plain to the district court, Leonidas and Hernandez cannot show that allowing the jury to hear those opinions affected their substantial rights or the fairness of the proceedings. A thorough examination of the transcripts of Murillo‘s phone conversations reveals they do not so much as mention any Appellant‘s name or moniker, nor do they pertain in any way to Leonidas‘s or Hernandez‘s roles in CLCS. There was no plain error in allowing this testimony.
2
Appellants concede that other lay witnesses—former CLCS members—properly corroborated nearly all the officers’ challenged testimony,4 but argue that those witnesses—Pantoja, Delaguila, Alexander Serrano, Villalobos, and Guillen—were “inherently suspect because they were testifying in exchange for sentence reductions.” But Appellants’ counsel deftly elicited the cooperators’ incentive to deceive on cross-examination; the jury was well aware of the sentence reductions each was in line to receive, and it chose to credit their testimony anyway. There is no rule in our Circuit that a criminal conviction may not, as a matter of law, rest on the testimony of government cooperators. In our system, “[i]t is up to the jury . . . to determine the credibility of a witness’ testimony.” United States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir. 2005). We decline Appellants’ invitation to intrude on the province of the jury.
And Appellants ignore the import of the agents’ testimony, which was not primarily to implicate Appellants in illicit activity, but rather to prove the existence of a criminal enterprise, which conducted its business through a pattern of racketeering activity, including a conspiracy to distribute narcotics. Dozens of other witnesses—lay and expert, law enforcement and gang member—established CLCS‘s narcotics and racketeering endeavors. Given “the overwhelming evidence” that the enterprise and conspiracy existed based on other witnesses’ testimony, Lloyd, 807 F.3d at 1168, we have more than “a fair assurance that the jury was not substantially swayed by the error,” Gadson, 763 F.3d at 1208 (internal quotation marks and citation omitted).
C
Perez challenges his convictions on four counts, alleging the district court improperly instructed the jury on the extraterritorial application of the
1
Federal statutes are presumed to apply only within American territorial jurisdiction. See Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). The so-called presumption against extraterritoriality has both descriptive and normative justifications: it is based in part on “the commonsense notion that Congress generally legislates with domestic concerns in mind,” Smith v. United States, 507 U.S. 197, 204 n.5 (1993), and it serves to prevent “unintended clashes between our laws and those of other nations which could result in international discord,” EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991). Unless a statute gives “a clear, affirmative indication that it applies extraterritorially,” it covers only domestic conduct. RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2101 (2016).
RJR Nabisco lays out a two-step process for determining whether a statute has extraterritorial effect. First, we ask “whether the presumption against extraterritoriality has been rebutted.” Id. The presumption “can be rebutted only if the text provides a ‘clear indication of an extraterritorial application.‘” WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2136 (2018) (quoting Morrison v. Nat‘l Australia Bank, Ltd., 561 U.S. 247, 255 (2010)). Second, if the statute does not apply extraterritorially, we ask “whether the case involves a domestic application of the statute“; that is, whether “the conduct relevant to the statute‘s focus occurred in the United States.” RJR Nabisco, 136 S. Ct. at 2101.5
2
Perez finds fault in the district court‘s instruction to the jury on Counts
That instruction is wrong.8 RJR Nabisco explicitly held that
But
It may well be that California could exercise its jurisdiction over the conduct charged here: even though the California murder statute does not cover wholly extraterritorial conduct, the government presented substantial evidence that Perez
3
Even though the extraterritoriality instruction to the jury misstated the law, “[a]n improper jury instruction does not require reversal if the error is harmless.” United States v. Garcia, 729 F.3d 1171, 1177 (9th Cir. 2013). See also Chapman v. California, 386 U.S. 18, 24 (1967). A “constitutional” error is only harmless if we are satisfied “beyond a reasonable doubt that the . . . instruction . . . did not contribute to the guilty verdict.” Kleinman, 880 F.3d at 1035. Whether a jury-instruction error is constitutional is sometimes “not clear.” United States v. Hernandez, 476 F.3d 791, 801 (9th Cir. 2007). Where that error lies in defining the offense, we have required harmlessness to be proven beyond a reasonable doubt. See, e.g., Neder v. United States, 527 U.S. 1, 19–20 (1999) (error subject to harmless-error review where the instruction omitted an element of the offense); Garcia, 729 F.3d at 1177-78 (erroneous definition of manslaughter was constitutional error). While the district court‘s misstatement of
That error incorrectly described the district court‘s authority to hail Perez before the court and to punish him for conduct occurring outside its physical jurisdiction. Like the statutory elements in Neder and Garcia, a nexus between American territory and Perez‘s participation in the crimes alleged is a necessary condition for his conviction where, as here, the statute does not reach Perez‘s purely extraterritorial criminal conduct. As a result of the error, the jury was wrongly told it could find him guilty for crimes occurring solely in Mexico. We think this error has a constitutional due process dimension: it relieved the United States of the burden of proving the required connection between American territorial jurisdiction and the crimes in Counts One, Sixteen, Seventeen, and Eighteen for which Perez stood trial in the Central District of California. See United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990) (framing extraterritorial application of a statute in due process terms); cf. In re Winship, 397 U.S. 358 (1970) (proof of a criminal charge beyond a reasonable doubt required by due process). We therefore evaluate whether the instructional error as to those Counts was harmless beyond a reasonable doubt.
i
Our harmless-error standard emphasizes that where evidence of a defendant‘s guilt is “overwhelming,” even significant jury-instruction error can be harmless. See, e.g., United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015). However, failing to instruct on an element of a crime is not harmless if there is sufficient evidence that the jury could have found in favor of the defendant if properly instructed. Neder, 527 U.S. at 19.
At trial, the government presented compelling evidence that the conspiracy to murder Macedo began in California shortly after Garcia‘s death. The jury heard testimony that the Eme-mandated “green light“—the authorization for all Southern California Hispanic gangs to punish CLCS for baby Garcia‘s murder—was “automatic” as soon as the infant died. Isaac Guillen told the jury that a gang that fails to “clean [its] own house” by taking out the murderer of a child starts “getting hit” by other gang members in lockup, and that other Eme members would expect Martinez to green-light CLCS members if they had killed an infant.
Pantoja‘s testimony was key. He was repeatedly pressed about the origins of the conspiracy to murder Macedo, testifying that if Macedo was left alive, all of CLCS would come under sustained attack from other gangs. He told the jury his plan was to kill Macedo all along, that Macedo‘s death was necessary to spare CLCS, and that he started preparing immediately to kill Macedo. The jury was entitled to credit Pantoja‘s testimony: the evidence was sufficient to support Perez‘s convictions. See Part II.D.2, infra.
But sufficient is not overwhelming. As Perez points out, Pantoja gave shifting and contradictory explanations for bringing $30,000 to Mexico, ultimately telling the jury he did not know why he brought the money along. (Perez claims the $30,000 was to pay to board Macedo in Mexico—money that would be unnecessary if the plan were to kill Macedo the whole time.) Perez also elicited from Pantoja that, despite the latter‘s earlier testimony that everyone knew a green light automatically attached to the murderer of a child, Macedo himself was apparently completely in the dark about the ramifications of having killed Garcia.
These inconsistencies bolster the defense theory of the case: that Pantoja planned to hide Macedo out in Mexico—and brought money to board him there—but ultimately changed his mind in Mexico and ordered Macedo‘s death. And Perez made his case plain by hammering Pantoja‘s trial statements’ inconsistency with Pantoja‘s previous proffers, in which Pantoja had told the government he ordered Macedo taken to Mexico to hide him out, not to kill him. Our precedents establish a high bar for finding harmlessness beyond a reasonable doubt. See, e.g., Neder, 527 U.S. at 19 (error not harmless where defendant “contested the omitted element and raised evidence sufficient to support a contrary finding” (emphasis added)). Pantoja was the government‘s key
ii
In finding Perez guilty of Count One, the jury made a special finding that the conspiracy to murder Macedo began “on or about September 15, 2007“—the date of baby Garcia‘s murder—and continued through “on or about September 21, 2007“—the day Perez and Murillo tried to kill Macedo. Murillo picked up Macedo in the Los Angeles area to take him to Mexico late at night on September 19, and they arrived in Tijuana, Mexico, early in the morning on September 20—four days after Garcia‘s murder and just a day before the attempted murder of Macedo.
That the jury found the conspiracy began “on or about September 15” is strong evidence it believed the government‘s case that the plan was hatched in the Central District of California. It would be strange indeed for a juror who believed Perez‘s theory of the case to sign off on this finding despite believing it set the conspiracy‘s beginning five days too early—on a six-day timeline. But, as one of the district court‘s earlier instructions clarifies, “on or about” is flexible: the court told the jury it need only find the crime was committed “on a date reasonably near the date alleged in the indictment,” not “precisely on the date charged.” Our case law holds that eighteen days is “reasonably near” the date alleged, see United States v. Hinton, 222 F.3d 664, 672-73 (9th Cir. 2000), though two years is not, United States v. Tsinhnahijinnie, 112 F.3d 988, 991–92 (9th Cir. 1997). With this background in mind, we cannot say we are convinced beyond a reasonable doubt that every juror who agreed the conspiracy began “on or about September 15” definitively ruled out that it began on September 20.
iii
The final piece of this harmlessness puzzle is the most important: in its specific instruction regarding Count Sixteen—the
D
Finally, all four Appellants challenge the sufficiency of the evidence underlying their convictions. We review the denial of a defendant‘s motion to acquit de novo. See United States v. Christensen, 828 F.3d 763, 780 (9th Cir. 2015). The evidence underlying a conviction is sufficient if, “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Phillips, 929 F.3d 1120, 1123 (9th Cir. 2019) (internal citation omitted). See also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
1
Hernandez and both Iraheta brothers challenge the sufficiency of the evidence underlying their convictions on Count Two, narcotics conspiracy. All three moved for acquittal after the verdict was returned. To convict these Appellants for narcotics conspiracy, the government was required to show: (1) there existed an agreement between two or more persons to possess with intent to distribute or to distribute crack cocaine or methamphetamine or both; and (2) Appellants joined the agreement knowing of its purpose and intending to help accomplish that purpose. Little need be said regarding the existence of an agreement to distribute drugs: the evidence showed drug distribution was the cornerstone of CLCS‘s enterprise, its raison d‘etre. Nearly every witness who took the stand testified to some aspect of CLCS‘s pervasive regime of crack dealing. The evidence of its existence was truly overwhelming.
So too was the evidence of Hernandez‘s central role in the charged conspiracy. Multiple witnesses referred to Hernandez as a “shot caller” or leader of CLCS‘s drug-trafficking operation. Alexander Serrano, who was the lead rent collector at Eighth and Burlington, testified that Hernandez “was the one in charge of [Westlake Avenue] collecting rent” in 2000; Villalobos and Delaguila said the same. Villalobos‘s testimony was particularly informative:
PROSECUTOR: Okay. What role did Defendant Hernandez have at Westlake?
VILLALOBOS: [Hernandez] had ultimate control of who was going to sell—what material is going to be on the street; what Mayorista he wants there—all—controlled all the narcotics on the streets . . .
Westlake was regarded as one of the crown jewels of CLCS‘s narcotics operation: Pantoja testified that Hernandez collected between $5,000 and $8,000 per week in rent from the street‘s traqueteros and mayoristas, and that it was Hernandez‘s
Likewise, Vladimir Iraheta‘s participation in CLCS‘s narcotics operation cannot seriously be questioned. Vladimir concedes that “he has been a gang affiliate” with “a history of prior arrests for narcotics related conduct.” But he claims there was “scant evidence concerning the activities of or any acts actually performed by” him. He blames “an inflamed jury” for convicting him on the narcotics conspiracy because оf the evidence of murder presented against him.
At trial, the government put on copious evidence that Vladimir played an integral role in CLCS‘s drug-trafficking operation. Like Hernandez, Vladimir was held to be among Martinez‘s “legal team“—his trusted lieutenants in CLCS territory. Serrano characterized Vladimir as Hernandez‘s “muscle.” Villalobos told the jury Vladimir became Hernandez‘s deputy overseeing fifteen to twenty traqueteros on Westlake Avenue around 2001 or 2002, and that Villalobos gave money collected from traqueteros to Vladimir to bring to Guillen. Vladimir protests that his mere association with CLCS is not enough to convict him for participating in the narcotics conspiracy. He‘s right: “mere gang membership” is not enough to show that a person has joined a criminal conspiracy. See United States v. Bingham, 653 F.3d 983, 997 (9th Cir. 2011). Not every CLCS member is guilty of taking part in a narcotics conspiracy by virtue of his gang allegiance. Unfortunately for Vladimir, the evidence shows far more than “mere gang membership,” or mere presence in CLCS territory. The government put on evidence sufficient for rational jurors to find Vladimir was a core member of CLCS‘s drug-trafficking operation. He enriched it by supervising drug sales, he protected it with violence, and he helped launder its profits.
Vladimir complains that the government‘s narcotics-conspiracy case against him largely rested on Villalobos‘s testimony. Vladimir‘s argument goes like this: because Villalobos was the chief witness in the government‘s murder case against him, and because the jury hung on that count, the jury necessarily disbelieved Villalobos, so his testimony linking Vladimir to the narcotics conspiracy cannot be credited. Putting aside that Villalobos was far from the only witness who implicated Vladimir in CLCS‘s narcotics activity, the district court was right when, in denying Vladimir‘s motion to acquit, it said, “[T]he jury can believe Mr. Villalobos on one issue but not other issues.” Indeed, the jury‘s willingness to credit parts of Villalobos‘s testimony while disregarding others showcases its thoughtful, discerning approach to the case; there is no evidence the jury was “inflamed” against Vladimir. It was entitled to find him guilty based on the evidence established at trial. Vladimir‘s narcotics-conspiracy conviction is affirmed.
Leonidas Iraheta‘s sufficiency claim fails, too. Witness after witness identified Leonidas as a core member of CLCS—one who sold drugs, protected CLCS territory with violence, and helped to run its business operations. Like his brother, Leonidas was considered part of Martinez‘s “legal team.” Pantoja testified that, in 2000, Leonidas assisted Hernandez in collecting rent from one of CLCS‘s
2
Perez challenges the sufficiency of the evidence giving rise to his three conspiracy convictions: Counts Sixteen (
In addition to his attack on Pantoja‘s credibility, Perez argues that, even if there was sufficient evidence of the conspiracy‘s originating in the United States, there was insufficient evidence that he joined that conspiracy in this country.11 Perez does not deny his presence at the Mexicali cliffside, nor that he tried to murder Macedo there. But he denies that a reasonable jury could have found that he joined the conspiracy in California.
The evidence of Perez‘s joining the conspiracy in California is admittedly less than overwhelming. But examining that evidence in the light most favorable to the government, it was sufficient to permit a reasonable jury to find beyond a reasonable doubt that Perez joined the conspiracy in California. Pantoja told jurors emphatically and repeatedly that the conspiracy began in California: he told them he ordered Murillo to take Macedo to Mexico to kill him shortly after Garcia‘s death, and that Murillo in turn requested Perez‘s help. It required no great leap in logic for a juror to infer that Murillo informed Perez of the plan‘s details upon enlisting his help. Other evidence in the record also supports this conclusion. Perez took precautions that could be interpreted as demonstrating his knowledge that the plan was always to murder Macedo: Perez made the group stop on the way to Mexico so he could retrieve an identification card that would allow him to reenter the United States, but refused to allow Macedo to get his own identification card; and Perez told Aquino not to use real names or monikers on the trip, indicating that Perez knew the purpose of
III
In addition to their merits-based arguments, Hernandez and Leonidas challenge their sentences as both procedurally erroneous and substantively unreasonable.12 Beginning with their procedural challenges, we “review the district court‘s interpretation of the Guidelines de novo, the district court‘s application of the Guidelines to the facts of the case for abuse of discretion, and the district court‘s factual findings for clear error,” if the claim was preserved. United States v. Treadwell, 593 F.3d 990, 999 (9th Cir. 2010), overruled on other grounds by United States v. Miller, 953 F.3d 1095, 1103 n.10 (9th Cir. 2020). Where the claim was not preserved, the district court‘s determination is reviewed for
plain error.13 See, e.g., United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). A sentence is substantively reasonable if it is “sufficient, but not greater than necessary” under the totality of the circumstances and
A
Hernandez and Leonidas jointly object to the district court‘s drug weight calculation under
1
Appellants attack the district court‘s drug quantity calculation on almost every front, but each blow misses the mark. The district court properly utilized the multiplier method to calculate the amount of drugs Appellants were responsible for under
The district court‘s multiplier-method calculation centered on the evidence adducеd at trial, including testimony about the amount of money collected weekly from the Third and Westlake drug hub and the highest average wholesale price of crack cocaine sold during the conspiracy. That figure was multiplied to account for the amount of drugs sold between 2000 and 2003, when both Hernandez and Leonidas were working at the Westlake location on behalf of CLCS, according to testimony found credible by the court. See
Appellants argue that the district court should have applied the clear and convincing standard of proof in making drug quantity determinations for sentencing. But we have “repeatedly held that sentencing determinations relating to the extent of a criminal conspiracy need not be established by clear and convincing evidence.” Treadwell, 593 F.3d at 1001. Further, we have specifically stated that “factual disputes regarding drug quantity” should be resolved via the preponderance of the evidence standard. United States v. Flores, 725 F.3d 1028, 1035 (9th Cir. 2013). Appellants’ challenges to the district court‘s drug quantity calculations are all factual and/or related to the extent of the conspiracy and their involvement therein. While it is not entirely clear from the record what standard the district court applied to its findings, to the extent that it used the preponderance of the evidence standard in its drug quantity determinatiоn, there was no error.
Somewhat more convincing is Appellants’ argument that the dollar figures utilized by the district court were flawed. They argue that the court should have used a higher price for crack cocaine-$36,000 per kilogram retail, rather than the $20,000 per kilogram wholesale price that it chose-and should not have relied on the testimony of a co-conspirator witness who provided the $8,000 per week sales figure. But, in actuality, more than one witness testified to a similar sales figure at trial where they were subject to cross-examination, and the district court was entitled to rely on that information. See United States v. Alvarez, 358 F.3d 1194, 1213 (9th Cir. 2004) (three coconspirators’
Finally, the record supports the district court‘s determination that both Appellants were continuously working at the Westlake drug hub during the selected time period of 2000 to 2003, with Hernandez running the show and Leonidas and his twin brother acting as muscle. The district court cited Appellants’ “long standing participation in thе scheme,” and found that the drug sales at Westlake were “reasonably foreseeable in connection with the scope of the defendant[s‘] agreement as to the jointly undertaken scheme.” See United States v. Ortiz, 362 F.3d 1274, 1275 (9th Cir. 2004) (conduct of a member of a conspiracy must be “both in furtherance of jointly undertaken activity and reasonably foreseeable” for it to be considered at sentencing). Drug sales, and the money flowing from them, were evidently consistent during the timeframe selected. See Culps, 300 F.3d at 1081 (drug operation must be continuous during period of time selected). Because we can find no evidence, and Appellants present none, to dispute the time period selected by the district court, evidence of the continuous nature of the drug sales from the Westlake location during that time, and Appellants’ extensive connection to those drug sales, the district court did not err in its calculation of a base offense level of 38 for Hernandez and Leonidas.
2
The district court applied two enhancements to the base offense level calculation of both Leonidas and Hernandez: a two-level enhancement for firearm possession and a two-level enhancement for the use or direction of violence or credible threats of violence.
A two-level firearm enhancement is proper if a defendant possesses a weapon in furtherance of the drug trafficking offense.
No firearms were recovered in this case, however, and none of the evidence cited by the district court indicates that Hernandez possessed a firearm that may have been connected to any offense. See United States v. Briggs, 623 F.3d 724, 731 (9th Cir. 2010) (reversal of sentence for application of firearm enhancement where “defendant repeatedly bragged about the guns he had access to, but none of these firearms was ever recovered“); United States v. Miller, 890 F.3d 317, 328 (D.C. Cir. 2018) (“The District Court plainly erred by imposing the enhancement because it made no factual finding as to any nexus between those firearms and Appellant‘s drug convictions ....“). The district court made no finding about which Appellant possessed or controlled the firearm that was used in the Barajas murder. Neither did the court explain whether Hernandez may have had constructive possession over a firearm that was found on a fugitive arrested by LAPD officers at Hernandez‘s apartment, or whether a firearm that Hernandez apparently gave to Pantoja in 2000 for Pantoja‘s personal protection could in any way link back to Hernandez‘s possession during the course of the scheme-we think both situations are improbable. See United States v. Kelso, 942 F.2d 680, 682 (9th Cir. 1991) (reversal warranted where enhancement was applied to defendant who “may have had access to the gun, [but] there is no evidence he owned it, or even was aware of its presence“).
Likewise, we cannot place any specific firearm in Hernandez‘s possession based solely on his general involvement in “green-lighting” and “gangbanging.” Cf. United States v. Heldberg, 907 F.2d 91, 94 (9th Cir. 1990) (recovered gun was possessed during time period of importation of drugs). Although the district court‘s concern about the CLCS tradition of violence is well supported on this record, without any actual evidence of a firearm that Hernandez may have exercised “dominion or control over,” we cannot condone application of the enhancement. Compare Briggs, 623 F.3d at 731, with Boykin, 785 F.3d at 1364 (enhancement proper where agents recovered firearms at defendant‘s residence where he also conducted drug sales); Willard, 919 F.2d at 609-10 (enhancement proper where guns were recovered at defendant‘s place of business).
The same is not true for Leonidas, however, because the district court relied on testimony about his actual handling of a firearm. Direct testimony established that Leonidas and his brother, Vladimir, terrorized someone with a “12-gauge shotgun,” and that Leonidas was seen by another witness with two guns during the course of the conspiracy. There was also evidence in the record that, in 2002, a police officer observed Leonidas removing a stainless-steel handgun from his waistband and placing it on the tire of a van shortly before fleeing. The handgun was later recovered and Leonidas was arrested. From these facts, the district court could have reasonably concluded that, during the conspiracy, Leonidas had constructive possession of a firearm, which may have been used in furtherance of the aims of the CLCS enterprise.
There was no error in applying the enhancement to Leonidas and, although the district court erred in applying the firearm enhancement to Hernandez, such error does not require reversal. “When a defendant is sentenced under an incorrect Guidelines range-whether or not the defendant‘s ultimate sentence falls within the correct range-the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). But here, even without the two-level firearm enhancement, the Guidelines range is the same. The correct Guidelines calculation still yields a sentence recommendation of life for Hernandez at offense
3
Turning to the district court‘s two-level enhancement for use or direction of threats, we find no error in its application to either Hernandez or Leonidas. While it may be based on the same underlying circumstances as the firearm enhancement, under
Hernandez individually challenges the district court‘s application of an obstruction of justice enhancement under
An obstruction enhancement is proper:
If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant‘s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.
As noted earlier, the district court is entitled to rely on co-conspirator testimony offered at trial. Alvarez, 358 F.3d at 1213. And while a district court may consider “relevant information without regard to its admissibility under the rules of evidence applicable at trial,”
572, 577-78 (9th Cir. 1995) (the only evidence was contradicted testimony, given at the sentencing hearing, of a single event by co-defendant who had already pleaded guilty and repeatedly invoked Fifth Amendment).
Similarly, there was no clear error in the district court‘s application of an aggravated-role enhancement to Hernandez‘s sentencing calculation. See United States v. Yi, 704 F.3d 800, 807 (9th Cir. 2013). A three-level enhancement, as was utilized, is available for a defendant who acts as “a manager or supervisor (but not an organizer or leader) [where] the criminal activity involved five or more participants or was otherwise extensive.”
During Hernandez‘s sentencing hearing, the district court cited the testimony of four different co-conspirators to support its conclusion that Hernandez was “a manager or a supervisor” of the drug conspiracy. This included evidence that Hernandez was in charge of the Westlake drug distribution hub from 2000 to 2003, in charge of gangbanging for an even longer period, and was part of the “core group” and “top echelon legal team” of CLCS. Hernandez disputes this characterization of his involvement
When viewing the conspiracy as a whole, it was clearly both “extensive” and involved at least five other participants, only one of which is necessary. See
4
Leonidas individually challenges his sentence on the basis that the district court failed to resolve one of his objections to the PSR, under
We reject Leonidas‘s Rule 32 argument because he failed to contest any factual statements made in the PSR. Though the sentencing memorandum filed by his counsel included the assertion that Leonidas should receive a two-level reduction for his minor role in the enterprise, it did not contradict any of the facts in the PSR. Leonidas‘s memorandum simply marshaled additional facts from trial in support of his argument that the district court should apply the reduction. This kind of challenge does not trigger Rule 32, and the court was not otherwise obligated to make specific findings of fact to justify its decision not to apply the reduction. See Petri, 731 F.3d at 841 (rejecting request for minor-role reduction where objection was raised but defendant “did not allege a factual inaccuracy in the presentence report“); Christensen, 732 F.3d at 1102 (“Because [the defendant] never made specific factual objections to the PSR regarding victim impact and loss amounts, Rule 32 was never triggered.“). No Rule 32 violation was committed.
5
Hernandez and Leonidas jointly argue that the district court‘s explanation of how its sentencing determinations
After calculating the base offense level, listening to arguments-first about the Guidelines calculation, then about the
6
Hernandez and Leonidas argue that the
Appellants’ joint brief ignores the fact that the jury found them responsible for possession of 280 grams or more of a mixture that contains cocaine base under
Appellants cite Apprendi v. New Jersey, 530 U.S. 466 (2000), but neither that case nor its progeny guard against sentences within the prescribed statutory maximum based on facts found by the jury. Id. at 490 (jury must decide facts increasing statutory maximum penalty); United States v. Booker, 543 U.S. 220, 233 (2005) (increasing judicial disсretion in sentencing by making the Sentencing Guidelines advisory to avoid Sixth Amendment problems); United States v. Fitch, 659 F.3d 788, 795-96 (9th Cir. 2011) (citing these standards as supporting the conclusion that the “sentencing judge has the power to sentence a defendant based upon facts not found by a jury up to the statutory maximum“). As such, Appellants’ constitutional argument is without merit.
The substantive-unreasonableness claims raised by Hernandez and Leonidas also fail. Though Appellants are correct that the district court considered the Barajas murder during sentencing, finding both Appellants responsible under the preponderance of the evidence standard, the court explicitly declined to consider that crime in its offense level calculation. Instead, the court determined Appellants’ offense level using evidence of their drug trafficking activities and reserved the Barajas murder for consideration among other
IV
Hernandez‘s, Leonidas‘s, and Vladimir‘s convictions are affirmed. Perez‘s convictions on Counts One, Sixteеn, Seventeen, and Twenty are affirmed, but his conviction on Count Eighteen is vacated and remanded. The government may choose to retry Perez on that count or the district court may resentence him without it if no retrial is conducted. Though the district court improperly applied the firearm enhancement to Hernandez, the error was harmless, and all of Hernandez‘s and Leonidas‘s other sentencing-related challenges fail. We hold that there was no error in the district court‘s decision to give both Hernandez and Leonidas life sentences. Because the district court accounted for Perez‘s Count Eighteen conviction in sentencing him, we remand for resentencing if the government elects not to retry him on that charge.
AFFIRMED in part, REVERSED and VACATED in part, and REMANDED with instructions.